Saturday, February 07, 2009

Bomb Recipe

There are all kinds of imprudent instructions available online. How to hack, how to phreak, how to build a pipe, how to disappear and assume a new identity, etc. So it is in that tradition that I offer this sketch of instruction on how to sue the School District to stop the closures.

It may be irresponsible of me to provide this information. It may also be pointless to offer the instruction because the chances for success are so poor. So there is no need to write a comment to advise me of either of these two points. I am already well aware of them, thank you. I'm providing the information so that people will have the facts while a tornado of misinformation swirls around them. Information wants to be free. Knowledge is power and this blog is about empowering people with knowledge. So spare me, please, the rants about how I am either irresponsible or foolish.

The best chance to blocking the closures will only delay them, not really stop them. And the only ones that I think can be delayed through the Courts are Meany, Cooper, Summit, and the AAA. These schools were closed but never got a public hearing on their closure. The law - RCW 28A.335.020 - requires a public hearing. The District contends that they were not legally obligated to hold public hearings for these schools because the buildings are remaining open. That's the critical question for the Court to decide: what does the law mean by "school"? Is it the school building or is it the program?

Here is the complete text of the law:
RCW 28A.335.020
School closures — Policy of citizen involvement required — Summary of effects — Hearings — Notice.

Before any school closure, a school district board of directors shall adopt a policy regarding school closures which provides for citizen involvement before the school district board of directors considers the closure of any school for instructional purposes. The policy adopted shall include provisions for the development of a written summary containing an analysis as to the effects of the proposed school closure. The policy shall also include a requirement that during the ninety days before a school district's final decision upon any school closure, the school board of directors shall conduct hearings to receive testimony from the public on any issues related to the closure of any school for instructional purposes. The policy shall require separate hearings for each school which is proposed to be closed.

The policy adopted shall provide for reasonable notice to the residents affected by the proposed school closure. At a minimum, the notice of any hearing pertaining to a proposed school closure shall contain the date, time, place, and purpose of the hearing. Notice of each hearing shall be published once each week for two consecutive weeks in a newspaper of general circulation in the area where the school, subject to closure, is located. The last notice of hearing shall be published not later than seven days immediately before the final hearing.


You may be able to contend that "school" in this context means the program, not the building. To support that argument, you could point out that when the RCW talks about school buildings, the law specifically reads "school building" or "school property". A number of examples are available, including RCW 28A.335.010, 050, 070, 090 and a whole lot more. There are references that mention using the property for "school purposes" which makes it clear that the school is the purpose or use of the property, it is not the property itself.

Further support for the idea that "school" refers to the program and not the building can be found in the District's practices. The District, in every other legal context, takes "school" to mean the program and not the building. For example, state law, WAC 180.16.220, requires the District Directors to approve every school every year. As part of that approval process, each school must write a School Improvement Plan. This plan is supposed to be continuous - from year to year. When the District moved ORCA into Whitworth, it was the string of ORCA plans that continued and the Whitworth plans that ended. The data in the plan referred to ORCA's data, not Whitworth's. The District approved ORCA - not Whitworth. Whitworth closed - not the building but the program. So in this context the District clearly interpreted "school" to mean the program, not the building. Will the Pathfinder CSIP reflect Cooper's data? Of course not. It will be about Pathfinder as it continues from the Genessee Hill building to the Cooper building. It is Cooper that won't have a CSIP because Cooper is closing - only Cooper didn't get a closure hearing.

Also, when reporting WASL scores to the OSPI, the historical record shown for ORCA at Whitworth is ORCA's record, not Whitworth's. In this legal context the District clearly believes that ORCA is the continuing school and Whitworth closed but there was no closure hearing for Whitworth. Will Van Asselt open 2009 in the AAA building at Level 5 of sanctions under NCLB as the AAA was? Of course not. That was the AAA and the AAA is closed - only the AAA never got a closure hearing.

In every legal context, the District takes "school" to mean the program and not the building - except in this one. School means the program, not the building, and the District was and is legally obligated to conduct closure hearings for schools - programs - that are closing.

So what do you do about it? Well, first hire a lawyer. You cannot do this yourself. If you're not a lawyer you have no idea how many simple mistakes you can make that will get your case thrown out. In fact, even lawyers have had lots of cases thrown out for making technical mistakes. Let's face it, the starting costs for a lawyer, even a low-budget one, is about $1,200. Contact Chris Jackins for a referral.

Second, here's the law that you use: RCW 28A.645.010:

RCW 28A.645.010
Appeals — Notice of — Scope — Time limitation.

Any person, or persons, either severally or collectively, aggrieved by any decision or order of any school official or board, within thirty days after the rendition of such decision or order, or of the failure to act upon the same when properly presented, may appeal the same to the superior court of the county in which the school district or part thereof is situated, by filing with the secretary of the school board if the appeal is from board action or failure to act, otherwise with the proper school official, and filing with the clerk of the superior court, a notice of appeal which shall set forth in a clear and concise manner the errors complained of.

Appeals by teachers, principals, supervisors, superintendents, or other certificated employees from the actions of school boards with respect to discharge or other action adversely affecting their contract status, or failure to renew their contracts for the next ensuing term shall be governed by the appeal provisions of chapters 28A.400 and 28A.405 RCW therefor and in all other cases shall be governed by chapter 28A.645 RCW.


So, with the lawyer, you write up your complaint and you deliver it to the Clerk of the Superior Court and you have to serve the District. Do not try to do this yourself. Do not let your lawyer try to do it. Hire a process server service to do it. This is the number one technical mistake that people make because it is hard as hell to serve legal papers on the District. They will literally hide from you. Seriously, like children playing hide and go seek. If you can't find them in their offices to serve them, and you don't serve them properly, they can get the case thrown out. That's what happened in the last round of closures.

Also, notice the time limit: 30 days. You have to do this during February. So if you're going to do it then get on your horse and ride. You are burning daylight.

There are other elements of this law that you should read before attempting anything like this. In fact, it is highly debatable IF you should attempt anything like this.

Let's say that someone decides to move forward with this. Let's suppose, just for academic purposes, that someone raises the cash, hires a lawyer, writes the complaint, files it with the Court and properly serves the District. Then what? Then the District takes their shot at getting it thrown out. They will claim that you have no standing - that you aren't really a party to the action. You might not absolutely need someone on your team with a child at one of the closed schools that didn't get a hearing, but you really should - if only to be assured of standing. They will claim that they were not properly notified - yes, even if you used a process server - so use one. They will ask for a summary dismissal because your case is utterly without merit - I don't think it is. If you survive all of these challenges (and maybe some that I haven't thought of) then you'll get your day in Court.

You'll get to make your case. Your case is essentially this: the Law requires the District to conduct public hearings when closing schools. They closed several schools without those hearings. The evidence that the schools are closed is the end of the annual CSIPs for the school and the end of the WASL record for the school. Moreover, "school" in the law clearly means the program not the building. I cannot begin to imagine how the District will counter this argument but I assure you than both Sharon McMinimee and Holly Ferguson are very sharp. They will think of something and it will be better than you would presume. It is likely to be extraordinarily sharp and lawyerly because in real people terms you got them cold.

Then the judge will decide. I have no idea how that will work out. It is very possible that the judge will decide that you're right but so what - he (or she) doesn't want to second-guess the District and she (or he) would rightly presume that with or without a hearing the schools would close anyway. The public hearings wouldn't have made a damn bit of difference anyway so why litigate their absence? On the other hand, the judge just might do something wacky like uphold the law. Be sure to include this idea in your argument as it could have a stiffening effect on the judge.

This is all completely hypothetical, of course. I don't think that anyone would want to piss away a few thousand dollars to try this little stunt. I'm sure it would be really interesting and educational, but it would also be fairly pointless. Even if you won, the District would just publish the notices, hold the hearings, and repeat the vote. There would be no change in the outcome.

21 comments:

Eric B said...

The District interpreted the law to mean school buildings in the last round too. Why do you think they continue to take that position?

Dorothy said...

On a slightly different note:

similar issues, another district.

Thanks again, Charlie and Mel, and everyone else who speaks up, contributes and cares.

Charlie Mas said...

I cannot make conjecture about the motivations of others. I'm not always clear about my OWN motivations.

If I were to guess, I would say that the District chooses to interpret the word "school" in the closure law to mean the building - despite the fact that they interpret the word to mean the program in every other context - because closures are highly controversial and they don't want to create a lot of drama by having a hearing in a building that is going to close. That's my best guess.

Seattlehorn said...

Since the APP split is ostensibly about "increasing access," has SPS been compliant with the law in accommodating minorities and bilinqual during testing?

I've been told by another parent that the following notice is NEW (and CYA) on SPS website. Can anyone verify this?

As part of the District's Five Year Plan and our efforts to address underrepresentation of students of color and students who are bilingual in Advanced Learning programs, additional testing may be administered for students who qualify for free and reduced lunch and students who are bilingual.

Providing additional testing steps for these students is one way in which we respond to the Washington Administrative Code (WAC) Sections 392-170-065 and 392-170-060 focused on nondiscrimination in the use of tests and nondiscrimination in the review of test results.

Melissa Westbrook said...

It would be interesting to go back and see what cases were brought before the courts in the last round. I think (off the top of my head) there were 2 but they got dismissed. It may have been for the technicalities that Charlie outlines here but it's worth looking at as well.

I don't think this is a bomb-making recipe - it's a how-to for those of us that are not part of the legal profession. Speaking up, no matter how others might react to it, is valid. If people sincerely do not believe the process was done legally, it's almost a duty to make sure of it.

Now Mr. Bible's claim's that the NAACP could get an injunction or investigation through the Department of Education is a little harder to believe. It would be one thing if the district's interpretation of "school" versus "program" is used so differently from case to case that a group of parents could make the case that district is twisting those words to their advantage at will. But proving out and out discrimination of one group of students is pretty hard to do.

hschinske said...

The district has been offering free appeals testing to students on FRL for quite some time. They may simply be posting the information more prominently than they used to. I don't recall whether bilingual students previously had any such accommodation, but they may well have done. I wasn't really paying attention to ESL issues.

Helen Schinske

Dorothy said...

Bilingual students have long had some sort of accommodation in the testing process. In the past they were the only ones offered the non-verbal portion of the Cogat, for instance. I remember once years ago, Bob Vaughan expressed frustration. Some families did not put on the application that the family didn't speak English at home. Either because they didn't know to answer it or were too proud. But it would have made a difference in the interpretation of scores and the assessments provided and kids who should have been in APP or Spectrum would fall through the cracks.

Seattlehorn said...

Thanks for the input. How would one find documentation of SPS's offered accommodations (for testing, not appeals) previous to 2009?

hschinske said...

I'll take a look at my files when I get a minute. I think I have various letters from the department somewhere that may say.

Helen Schinske

Charlie Mas said...

SPS has been providing students with factors (bilingual, FRE) a second chance at testing for three years now, since the 2005-2006 testing cycle. You can read this web page for more information.

Eric B said...

Perhaps the reply by SPS would be that there were hearings for each school that was closed. The hearings just did not occur at the closed school - so the Cooper hearing happened at Genesee Hill. The law give no guidance as to where the hearing has to take place. The only question would then be if each closing school got its own hearing as the law requires. Did the GH hearing focus solely on the Cooper/Pathfinder proposal? I think the transcript would demonstrate it did. I haven't read the others, however.

Charlie Mas said...

Eric, a good try, but it would not fly as the District specifically stated that the hearing was for the building that was closing and no other.

Besides, the law reads:

"The policy shall require separate hearings for each school which is proposed to be closed.
"

I don't know if the appeal law can be used to appeal a violation of the District's own policies or if it has to be a violation of law.

If appeals can be made for violations of Policy, then elementary APP families can appeal the Lowell split because it is non-compliant with Board Policy D12.00.

I know that the Board voted to ignore the elements of Policy D12.00 regarding the number of self-contained sites (although I don't know if the Court will find that kosher - I know that I don't), but the Board did not vote to waive the other requirements of Policy D12.00, including this one:

"Subject to Board review, in the event of substantial District wide enrollment growth, such program sites shall be distributed geographically and among clusters to provide equitable opportunities for program access."

Both of the two elementary program sites are in the Central Cluster. That is categorically NOT distribution geographically and among clusters. Consequently, this program placement is a violation of the Policy - not just because of the count, but due to the locations.

Charlie Mas said...

Actually, now that I think about it, if this law can be used to appeal decisions that are in violation of Policies and not just laws, then it would be possible for members of the insurgency to bring the District to Court and compel them to adhere to a number of the regularly violated Policies.

Hmmm. It would be mind-bogglingly expensive, especially if each Policy violation had to have its own appeal. Maybe they could be all wrapped up in one appeal.

That could be worthwhile.

Again, I don't know if the law can be used to compel the District to adhere to their own Policies or if it can only be used to appeal decisions that violate the law.

MoneyPenny said...

The same arguement was made last time closures happen, and surprise, the district won all of the cases. Mr. Jackins track record against the district is really poor, I think he has lost every case he has ever brought.

TechyMom said...

An idea for costs...
Many local employers offer legal insurance, which can significantly reduce the cost of a lawyer. I have it, but since my child isn't yet in school, I'd be on pretty thin ice with respect to standing. Perhaps there is someone with a child at an affected school who also has legal insurance?

Charlie Mas said...

Let's not have any misinformation.

Chris Jackins was not the litigant in the last round of closures. It was a woman named Gena Brooks (and a group called SOCKED). The grounds for the appeal were varied - scattered, in fact - but did not include the grounds that I reference here. They were opposing the closure of M L King, which did get a public hearing. That case was thrown out because the District was not properly served notice of the appeal.

I don't know that Chris Jackins has ever fought the District in Court. I know that during the summer he was pursuing some legal matters around the Denny/Sealth construction - the District "accidently" cut down a bunch of trees in a protected buffer zone along Denny Creek. I don't know how that is going, but I believe it either ran into a money shortage, technical problems, or is awaiting the next challenge opportunity on the next permit application date. This challenge wasn't in Court, it was before land use hearing commissioners (or whatever they are called). It was a challenge to the District's environmental impact statement. I met with him and the lawyer once because it looked like it was going to some kind of process where the litigants aren't allowed lawyers - they have to speak for themselves - and Chris was hoping that I would do the talking in Court if it came to that. It just didn't work out that way.

Eric B said...

Apparently someone named Rose Sanders also fought the district over this but it was thrown out due to her lack of standing (she lived nearby to one of the schools.) This was in the last couple of years.

SPSMom said...

"Rose Sanders" wasnt she the student featured in the KUOW news story about APP?

agibean said...

It was absolutely NOT the Rose Sanders in the Kuow story. I am her mother, so I can state this with some authority.

MoneyPenny said...

Most recent suits of Jackins that got dismissed were about the sales of former schools. Maybe a ouple weeks ago. He also was responsible for the Sanders case and for a case about the Denny/Sealth campus also dismissed. I just think that this isn't the legal bombshell you think it is, that is all. Otherwise the track record for the district would not be as good as it is.

Charlie Mas said...

I guess I should repeat that legal action against the closures has little hope for even limited success. The most it can achieve is a slight delay. If a Court finds that the District did not provide public hearings as it should have, they will simply publish the notice, conduct the hearings, and repeat the vote. In the end, nothing will be changed by the effort.

Activists (insurgents) would be well-advised to focus their energy in other efforts.